Freedom of Expression

It's been two years since our last post which means it's been over three years since the Anti Terror laws came into effect and three years since a disparate group of artists, writers and filmmakers met in Robert Connolly's office to discuss the new laws' effect on free speech.

Yesterday the Government agreed to accept 25 of the ALRC's 27 recommendations including removing "Sedition" from the statute books. The remaining 2 provisions were accepted "in principle" which means, for all intents and purposes, the Government has accepted the ALRC's report in full.

This is a fantastic victory. Congratulations and thank you to everyone who lobbied, wrote, painted and testified.

I'm happy to say this will be our last post. The ALRC's website has lots more information.

"we [are] finding ourselves in a world where we no longer know what we are allowed to know and what we are allowed to say"

The lead essay in the November issue of the Griffith Review is by Frank Moorhouse, "The Writer In A Time of Terror". It researches the recent controversial threats to free expression (books banned, hard drives smashed) and looks at the consequences of stifling debate. Is the freedom to speak and write an acceptable consequence of the war on terror or a vital part of a strong and vibrant society?

There has been much debate on SBS's inclusion of sedition in its Licensing Agreement. Obviously, since it's a new law, the previous SBS Agreement didn't offer a producer indemnity against sedition. The new agreement indemnifies producers against a charge of sedition (which means SBS will pay the cost of defending such a charge), but it requires the producers to undertake that they are not aware of any seditious material and that they are not deliberately putting seditious material to air.

From SBS's point of view it is doing its best to protect film-makers while it complies with the new law. The problem is that they must include sedition in the clause at all.

The Government is unlikely to charge an artist with sedition (imagine the publicity). They won't have to; anything that could be construed as seditious will likely have been eliminated by zealous lawyers long before it goes to air or to print. And with the bathwater goes the baby.

Our call to the Attorney General remains the same: Remove the sedition provisions which represent a real and palpable threat to the democracy that sustains our way of life.

In the last few days both our public broadcasters have taken steps to ensure that it will be more difficult to air controversial material. SBS has insisted that filmmakers now police their own work for seditious material and the ABC has appointed a Director of ABC Editorial Polices to ensure impartiality (whatever that is).

Less recently but just as ominously the OFLC (Office of Film and Literature Classification) is no longer an independent body and is now run by the Attorney General's department. The government was able to ban the books at the University of Melbourne, not because they were seditious but because they were refused classification by the OFLC.
In case you were wondering why banning books is such a bad idea, here is George Williams' articulate response to the recent threats to academic freedom.

What is puzzling is why a government with a majority in both houses and a clearly beloved leader who is about to become our longest serving Prime Minister feel the need to muzzle dissent?

Remember the good old days when freedom of expression was championed by our leaders as a cornerstone of democracy?

For many years an ugly piece of legislation lay slumbering. Now – prodded
awake by the Federal Attorney General Phillip Ruddock – we are seeing the
distempered beast in action. The public broadcaster SBS has included – for
the first time its history – a sedition clause in its standard TV licence
agreement. Gasp! Cover your mouths! See the beast topple freedom of
expression!

Here is a blow-by-blow account of how it happens: the broadcaster requires
that the producer of the TV program “fully and frankly disclose all
information within its knowledge to SBS relating to any potential
[seditious] Cause of Action”. First punch: the broadbrush mere potential of
sedition requires full disclosure. Next, if the producer becomes aware of
any fact or circumstance which “may give rise to a [seditious] Cause of
Action” then the producer must promptly give written notice of this to SBS.
Knock-out punch: if the producer fails to follow this zealous process then
the broadcaster will not be able to indemnify the producer against financial
liabilities in the event of legal proceedings. It goes without saying that
the broadcaster can offer no protection against the harsher penalties
attached to sedition, namely, imprisonment.

In other words, the creators of TV programs are now being asked to
diligently self-police.

Please find the full clause below:
"5A Legal consultation and litigation

5A.1 The Licensor will consult with the Commissioning Editor to
consider whether the production or publication of the Program could expose
SBS to liability in relation to any of the following causes of action (Cause
of Action):

(a) defamation;

(b) contempt of court, parliament or similar body;

(c) breach of any duty of confidence;

(d) breach of any legal restriction prohibiting the
identification of individuals in certain circumstances; or

(e) sedition.

5A.2 The Licensor will fully and frankly disclose all information
within its knowledge to SBS relating to any potential Causes of Action and
will make further inquiries at the request of SBS. If the Licensor becomes
aware at any stage of any fact or circumstance which may prevent SBS from
exercising its rights in the Program or which may give rise to a Cause of
Action, then the Licensor will promptly give written notice to the
Commissioning Editor.

5A.3 SBS will raise any concerns that the Program may give rise
to a Cause of Action with its legal advisers for the purpose of seeking
legal advice for the benefit of both SBS and the Licensor. The Licensor
will fully cooperate with SBS and its legal advisors and shall take such
steps as SBS and its legal advisors may require to minimise the parties’
potential liability in relation to any Cause of Action.

5A.4 If SBS’s legal advisors advise that any material in the
Program gives rise to a Cause of Action for which there is no readily
available defence, then SBS may request that the material in question be
deleted from or altered in the Program and the Licensor must company with
the request without delay and in any event prior to the first broadcast of
the Program.

5A.5 If any proceedings in respect of any Cause of Action in
relation to the Program (the Proceedings) are commenced against the Licensor
and / or SBS, then SBS will have full conduct and control of the Proceedings
and the Licensor will cooperate fully with SBS in respect of the conduct of
the Proceedings.

5A.6 (a) Provided that the Licensor has complied with
the preceding provisions of this clause SBS will in respect of
the Proceedings to the extent permitted by law indemnify the
Licensor against any and all financial liability the Licensor may
incur in connection with the Proceedings including costs incurred in
defending the Proceedings;

(b) For the purposes of the indemnity given under paragraph
5A.6(a) above, such indemnity will be construed as being given to the
Licensor and in addition (but only insofar as the matters to which such
indemnity relates arose in connection with the performance of their duties
in relation to the Program) to the Licensor’s officers and servants;

(c) Without prejudice to the limitation contained in paragraph
5A.6(a) above, if the Licensor is in breach of any provisions of this
Agreement, the indemnity provided in paragraph 5A.6(a) shall not apply to
the extent that the Proceedings relate to the subject matter of such breach.

5A.7 For the avoidance of doubt, this clause 5A operates
independently of the Licensor’s warranties under this Agreement."

Peter Garrett (Shadow Parliamentary Secretary for Reconciliation and the Arts) released a media statement calling for the removal of the sedition provisions, as has Sydney PEN.

Still hoping for a statement from Malcolm Turnbull who was a vocal opponent of the sedition provisions when the bill was introduced last year.

An AC Nielson poll puts free speech at the top of a list of Australian values. Published by Fairfax today, the poll asked 1400 people what they thought were the most important values mentioned by politicians in the last few weeks. Free speech was first closely followed by tolerance of different religions.
If you'd like to join the growing list, the statement is still available to sign.